Internet Sales Tax Debate Rages in the States

Amazon.com began collecting the 6.25 percent state sales tax on any purchases by Massachusetts’ residents starting November 1. The tax revenue collected by the company will then be submitted to the state’s Department of Revenue.

Amazon.com agreed to collect the tax when it acquired Kiva Systems last year based in North Reading, Massachusetts. Amazon is now either collecting state sales tax or is expected to start for orders originating in 16 states: Arizona, California, Connecticut, Georgia, Indiana, Kansas, Kentucky, Massachusetts, New York, North Dakota, Pennsylvania, Texas, Virginia, Washington, West Virginia and Wisconsin.

The main reason the company agreed to voluntarily collect online sales taxes in these states was directly due to the establishment of a physical presence in those states as Amazon.com has opened fulfillment warehouses, made acquisitions or agreed to keep in-state Amazon.com associates. Amazon.com simply dropped their sales affiliates in seven states where the company had no physical presence instead of collecting and remitting sales taxes including: Arkansas, Maine, Missouri, Minnesota, North Carolina, Rhode Island and Vermont.

The practice of taxing an out-of-state retailer for in-state sales was largely invalidated in the 1992 Supreme Court Ruling Quill Corp v. North Dakota. Since then, a new type of tax law, dubbed ‘affiliate nexus’ laws, have begun to take a new approach by taxing the sales of online retailers who do business through a third party located in the state. Typically, these third parties will link to a vendor’s website and are in turn compensated for any sales made through these types of referrals. If the amount of sales made through these referrals exceeds a certain threshold, typically $10,000, then all of the vendor’s sales made to consumers in that state become subject to state tax laws.

For example, Arkansas in 2011 enacted a law to require large e-commerce retailers to collect and remit state sales taxes if they generate more than $10,000 in sales a year through in-state sales affiliates. Connecticut requires e-commerce retailers to collect and remit state sales taxes if they generate more than $2,000 in sales a year through sales affiliates based in the state. A seller who enters into an agreement with a person in Maine, for a commission or other consideration, refers potential customers and has cumulative gross receipts from retail sales in excess of $10,000 must register with the tax assessor and collect and remit taxes. In Rhode Island, retailers that generate more than $5,000 in sales through sales affiliates based in the state must collect the tax. In response to these initiatives, Amazon has canceled affiliation agreements in many of the states that have enacted this type of law.

Meanwhile, the issue has been working its way through the courts. The Illinois Supreme Court on October 18 struck down an affiliate nexus law. The decision was a first, as courts in New York had previously upheld them. The Illinois court’s majority argued that there does not seem to be a difference between digitally linking customers and using means that are not taxed, like advertising promotional codes in print publications or radio broadcasts.

For years many state lawmakers have been hoping Congress would resolve the issue, but the current bill, The Marketplace Fairness Act, is stalled in the House. This bill would grant states the authority to compel online and catalog retailers, no matter where they are located, to collect sales tax at the time of a transaction. The bill would grant this authority only to states that have simplified their sales tax laws. Under this bill any online retailer with sales exceeding $1 million across all states would become subject to the same in-state taxes as brick and mortar operations. Notably, Amazon supports this bill but other online giants like eBay do not.

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